Citation Nr: 0801379
Decision Date: 01/14/08 Archive Date: 01/29/08
DOCKET NO. 03-13 267 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for a lung disorder.
[The issue of entitlement to service connection for diabetes
mellitus is addressed in a separate document, under a later
docket number.]
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The veteran had active service from August 1963 to August
1967.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a November 2002 decision of the Department of
Veterans Affairs (VA), Regional Office (RO), located in
Montgomery, Alabama, which, in pertinent part, denied service
connection for a lung disorder. This matter was previously
before the Board in May 2005 and January 2007 at which time
it was remanded for additional development. It is now
returned to the Board for appellate review.
In September 2003, the veteran testified at a personal
hearing over which an Acting Veterans Law Judge presided
while at the RO. Thereafter, in August 2007, the veteran
testified at a video conference hearing over which another
Acting Veterans Law Judge presided. A transcript of each
hearing has been associated with the veteran's claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action on his part is required.
REMAND
Having carefully examined the record, the Board finds that a
remand of this matter is necessary in order to enable VA to
comply with applicable law pertaining to the duty to assist
the veteran. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007);
38 C.F.R. § 3.159(c) (2007).
In its May 2005 Remand, the Board directed that the veteran
be scheduled for a VA examination so that the nature and
etiology of his claimed lung disorder could be addressed.
The veteran underwent a VA respiratory diseases examination
in September 2005. The examiner concluded that it was highly
probable that the veteran's lung condition was related to
asbestos and chemical exposure while working on aircraft
carriers during his period of active service. The examiner
premised her conclusion, in part, on her impression that the
veteran was not a smoker.
However, private hospital treatment records of the veteran
from the Flowers Hospital in Dothan, Alabama, dated from
October 2001 to February 2002, show that the veteran reported
a history of smoking three packs of cigarettes daily for
30 years. In light of the veteran's prior history of
smoking, the Board finds that an addendum to the September
2005 VA examination report should be obtained from the VA
examiner that conducted the examination, if available, so as
to determine whether a similar conclusion would be reached
given the veteran's prior history of smoking.
During his August 2007 video conference hearing, the veteran
indicated that he had been receiving recent treatment for his
lung problem from D. Prophet, M.D., and that he had been
scheduled to undergo additional testing. A review of the
veteran's claims file shows that outpatient treatment records
from Dr. Prophet are of record for treatment of the veteran
from March 2004 to January 2005. However, treatment records
from Dr. Prophet since January 2005 have not been associated
with the veteran's claims file. On remand, these records
should be obtained.
During his August 2007 video conference hearing, as well as
in a letter dated in August 2007, the veteran also indicated
that he was in receipt of disability benefits administered by
the Social Security Administration, in part, for a lung
disorder. Under 38 U.S.C.A § 5103A(c)(3), VA is required to
obtain relevant records held by any Federal department or
agency that the claimant adequately identifies and authorizes
the Secretary to obtain. See Diorio v. Nicholson, 20 Vet.
App. 193, 199-200 (2006).
The file does not reflect that the veteran's records
underlying the Social Security Administration's award have
been obtained. Lind v. Principi, 3 Vet. App. 493 (1992);
Murinscak v. Derwinski, 2 Vet. App. 363 (1992). Although not
dispositive as to an issue that must be resolved by VA, any
relevant findings made by the Social Security Administration
are evidence which must be considered. See White v.
Principi, 243 F. 3d 1378 (Fed. Cir. 2001); Wensch v.
Principi, 15 Vet. App. 362 (2001).
Accordingly, the case is REMANDED for the following actions:
1. The RO/AMC will make arrangements to
obtain from the veteran specific
information as to treatment associated
with care given by Dr. Prophet, with dates
of treatment and any appropriate
authorization and consent forms. All
identified records should be obtained and
associated with the claims file.
2. The RO/AMC shall make arrangements to
obtain a copy of any Social Security
Administration decision granting
disability benefits to the veteran. All
the medical treatment records from the
Social Security Administration that were
used in considering the veteran's claim
for disability benefits should be obtained
and associated with the veteran's claims
file.
3. The RO/AMC shall obtain an addendum to
the September 2005 VA examination report.
The claims file must be made available to
the reviewing examiner, and the examiner
should indicate in the addendum report
that the claims file was reviewed.
Following a review of the claims file, the
reviewing examiner (preferably the
original examiner) is requested to revisit
the issue of the approximate date of onset
and etiology of any currently diagnosed
lung disorders, including any relationship
with the veteran's period of service, in
light of the history of smoking as
provided by the veteran.
It is requested that the examiner consider
and reconcile any additional opinions of
record or any contradictory evidence
regarding the above. A complete rationale
for any opinion expressed should be
provided. The need for further clinical
examination or testing of the veteran is
left to the discretion of the reviewing
examiner.
4. The RO/AMC will then review the
veteran's claims file and ensure that the
foregoing development actions have been
conducted and completed in full, and that
no other notification or development
action, in addition to those directed
above, is required by the VCAA. If
further action is required, undertake it
before further claim adjudication.
5. The RO/AMC will then readjudicate the
veteran's claim. If the benefit sought on
appeal remains denied, provide the veteran
and his representative with a Supplemental
Statement of the Case. The Supplemental
Statement of the Case should contain
notice of all relevant actions taken on
the claim, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case is to be returned to the Board,
following applicable appellate procedure. The veteran need
take no action until he is so informed. He has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes
of this remand are to obtain additional information and
comply with all due process considerations. No inference
should be drawn regarding the final disposition of this claim
as a result of this action.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
STEVEN D. REISS HEATHER J.
HARTER
Acting Veterans Law Judge
Acting Veterans Law Judge
Board of Veterans' Appeals
Board of Veterans' Appeals
__________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).